Bench Memos

Republican State Attorneys General and the EPA

The 2012 election cycle provided many conservatives with a harsh reminder that they cannot always look to Washington for solutions.  For the next four years, at least, the most meaningful victories are likely to originate in state capitals or come to fruition after major legal confrontations initiated by state attorneys general who believe the Obama administration has exceeded its authority under the U.S. Constitution.  

During President Obama’s first term, a majority of states challenged the constitutionality of Obamacare, successfully rolling back the coercive element of that law’s Medicaid expansion, and now, eleven state attorneys general are suing to invalidate the most constitutionally offensive portions of the Dodd-Frank law. And the strategy of challenging federal overreach seems to be paying off.  

Last August, the EPA suffered a significant defeat in federal court at the hands of Republican attorneys general who argued that the EPA’s cross-state air pollution rule exceeded the agency’s statutory authority. From The Hill:

A federal court has struck down an Environmental Protection Agency rule that forces cuts in soot- and smog-forming power plant emissions that cross state lines, dealing a major blow to the White House’s air quality agenda. The U.S. Court of Appeals for the District of Columbia Circuit vacated the Cross-State Air Pollution Rule that forces cuts from plants in 28 states in the eastern half of the country, finding that it exceeds EPA’s powers under the Clean Air Act. . . .

The judges said the Obama administration rule allows EPA to “impose massive emissions reduction requirements on upwind states without regard to the limits imposed by the statutory text.”

Last week, some evidence emerged that the EPA might be taking this loss into account, much to the chagrin of environmental activists. As the Washington Post reports:

The Obama administration is leaning toward revising its landmark proposal to regulate greenhouse gas emissions from new power plants, according to several individuals briefed on the matter, a move that would delay tougher restrictions and could anger many environmentalists.

The discussions center on the first-ever greenhouse gas regulations for power plants, which were proposed by the Environmental Protection Agency nearly a year ago. Rewriting the proposal would significantly delay any action, and might allow the agency to set a separate standard for coal-fired power plants, which are roughly twice as polluting as those fueled by natural gas. . . .

The EPA is sure to face a lawsuit once it finalizes a greenhouse gas rule for new power plants, as well as the prospect of legislation in Congress to overturn such a rule. Last year a federal appeals court overturned one of the agency’s hallmark air-quality rules, the Cross-State Air Pollution Rule, and this represents the first time EPA has ever regulated greenhouse gas emissions from a stationary source.

“They need to set a standard that will hold up in court, or otherwise it jeopardizes the entire idea of regulating greenhouse gas emissions from coal-fired power plants,” O’Donnell said.

There are any number of possible explanations for the decision, but I wouldn’t be surprised if one of the most significant motivators was fear of losing another legal battle over the EPA’s reach. So cheers to the AGs who have made the fight for limited constitutional government a priority. 


The Latest